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Updated guidance from the Court of Protection on capacity assessments & reports
  • Jan 8, 2021
  • Latest News

The decision in AMDC -v- AG & Anor [2020] sets out the importance of implementing a thorough and structured process in dealing with capacity assessments and reports.

The case concerned AG, a 68 year-old woman, and her capacity to make decisions pertaining to various issues. As part of the proceedings, the parties jointly instructed a psychiatric expert to assess AG’s capacity. The case stresses the importance of parties and the court being able to identify that the fundamental principles of the MCA 2005 have been followed in expert reports, that proper steps have been taken to support P’s decision-making and engagement in the assessment, and that conclusions reached are adequately explained.

The concerns relating to the expert’s evidence included the following:

•  The report did not provide sufficient evidence either that AG had been given the relevant information in relation to each decision or of the discussions the expert had had with her about the relevant information;

•  Different conclusions were reached at different times without clear explanations of why the conclusions had changed or how the evidence, as a whole, fitted together;

•  The expert’s final conclusion had been reached on a broad-brush basis rather than by reference to each decision under consideration;

•  There was a lack of information to show how AG had been assisted to engage. This left doubts as to whether AG was incapable of understanding the purpose of the interview, whether she had been given adequate support to engage or whether she had simply chosen not to speak to the expert;

•  There was a lack of cogent explanations for why the presumption of capacity had been displaced in relation to the decisions under consideration. Conclusions were stated but not clearly explained.

A resumed hearing is fixed for January 2021 with directions for fresh capacity evidence from a new          expert.

Poole J set out helpful guidance on how written reports on capacity could best benefit the court:

•  An expert report on capacity is not a clinical assessment but should seek to assist the court to determine certain identified issues. The expert should therefore pay close regard to the terms of the Mental Capacity Act 2005 (MCA) and Code of Practice and the letter of instruction.

•  The letter of instruction should identify the decisions under consideration, the relevant information for each decision, the need to consider the diagnostic and functional elements of capacity and the causal relationship between any impairment and the inability to decide. If an expert is unsure what decisions they are being asked to consider, and what the relevant information is in respect to those decisions, they should ask for clarification.

•  It is important that the parties and the court can see from their reports that the expert has understood and applied the presumption of capacity and other fundamental principles as set out at section 1 of the MCA 2005.

•  In cases where the expert assesses capacity in relation to more than one decision, broad-brush conclusions are unlikely to be as helpful as specific conclusions as to the capacity to make each decision. Experts should also ensure that their opinions in relation to each decision are consistent and coherent.

•  Expert reports should only state the experts’ opinions, but also explain the basis of each opinion. The court is unlikely to give weight to an opinion unless it knows on what evidence it was based and what reasoning led to it being formed.

•  If an expert changes their opinion on capacity,following re-assessment or otherwise, a full explanation of why their conclusion has changed ought to be provided.

•  The interview with P need not be fully transcribed in the body of the report, but if the expert relies on a particular exchange of something said by P, then an account of what has been said should be included.

•  If, on assessment, P does not engage with the expert, then the expert is not required to mechanically ask P about each and every piece of relevant information if to do so would be obviously futile or even aggravating. The report, however, should record what attempts were made to assist P to engage.

The case stresses the importance of parties and the court being able to identify that in expert reports the fundamental principles of the MCA 2005 have been followed, that proper steps have been taken to support P’s decision-making and engagement in the assessment and that conclusions reached are adequately explained.

Should you require any further information, please feel free to contact Leah Selkirk.